2020 IL App (2d) 180100-U 

No. 2-18-0100 

Order filed July 15, 2020 

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as 

precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). 

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court

OF ILLINOIS, ) of Kendall County. 

) 

Plaintiff-Appellee, ) 

) 

v. ) No. 15-CF-129 

) 

ANTONIO GUTIERREZ, ) Honorable 

) John F. McAdams, 

Defendant-Appellant. ) Judge, Presiding. 

______________________________________________________________________________ 

JUSTICE ZENOFF delivered the judgment of the court.

Presiding Justice Birkett and Justice Brennan concurred in the judgment. 

ORDER

¶ 1 Held: In defendant’s prosecution for delivery of a controlled substance based on a drug 

transaction with an informant, there was sufficient evidence to reject the defense 

that the informant was simply repaying a prior debt to defendant and received no 

drugs from him. Also, the trial court did not err in denying defendant’s motion for 

a new trial based on newly discovered evidence of allegedly deceptive conduct by 

the same informant, where the evidence was not conclusive and was of a character 

that defendant could have discovered it before trial in the exercise of due diligence.

¶ 2 In this direct appeal, defendant, Antonio Gutierrez, contends (1) that the State’s evidence 

was insufficient to support his conviction of delivery of 15 grams or more, but less than 100 grams, 

of a substance containing cocaine (720 ILCS 570/ 401(a)(2)(A) (West 2014)), and (2) that the trial 
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court erred in denying his motion for a new trial, which was based on what defendant contended 

was newly discovered evidence. We hold (1) that the evidence was sufficient and (2) that the trial 

court did not abuse its discretion when it denied defendant’s motion. Accordingly, we affirm. 

¶ 3 I. BACKGROUND

¶ 4 Defendant waived his right to a jury trial and had a bench trial on the single count of which 

he stands convicted. That charge stemmed from an October 30, 2014, transaction with Shane 

Johnson, a confidential informant, which took place in the parking lot of the Walgreens Pharmacy 

at the corner of Routes 47 and 34 in Yorkville, Illinois. 

¶ 5 A. The Evidence at Trial

¶ 6 At defendant’s trial, the State’s evidence showed that Johnson brought defendant to the 

attention of the Kendall County Cooperative Police Assistance Team (CPAT). Johnson, who had 

known defendant for roughly 20 years, suggested to CPAT officers that defendant would sell him 

cocaine. However, he said that defendant would be unlikely to make a sale to an undercover 

officer. At the inception of the operation that led to defendant’s arrest, Johnson told CPAT officers 

that defendant had agreed to sell him an ounce (28 grams) of cocaine. The sale would take place 

on the afternoon of October 30, 2014. Defendant would meet Johnson at the McDonald’s on Route 

34 just west of the intersections of Routes 34 and 47. 

¶ 7 Johnson had twice been convicted of possession of controlled substances: once in Kane 

County and once in Kendall County. In the Kendall County case, he was in jail awaiting trial on 

a charge of delivery of a controlled substance when he agreed to cooperate with CPAT in exchange 

for a reduction of the charge from a delivery charge to a possession charge. He also received about 

$1900 for his cooperation. 
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¶ 8 The CPAT officers met Johnson on the afternoon of October 30, 2014. They searched him 

and the vehicle he was driving and fitted him with a “wire” for audio recording. (That recording 

starts at 2:43 p.m.) The searches revealed no contraband. Johnson had $20 in cash, which an 

officer held for him. Illinois State Police master sergeant Joe Stavola, the director of CPAT, gave 

Johnson $1000 in cash to buy cocaine from defendant. 

¶ 9 CPAT officers kept Johnson’s vehicle under visual surveillance after he left the initial 

meeting point. Stavola saw Johnson remain in the Walgreens parking lot for 10 minutes before 

driving away. Stavola followed Johnson’s vehicle; his passenger, Sergeant Jurgita Jankauskaite, 

entered Johnson’s vehicle when both vehicles were stopped at a traffic light. Both vehicles drove 

to a rendezvous. Stavola searched defendant and his car again. The only thing of note he found 

was the cocaine at issue in this case.

¶ 10 Other CPAT officers maintained surveillance of defendant and his car. Sergeant Behr 

Pfizenmaier of the Yorkville police entered the Route 34 McDonald’s at about 2:35 p.m. 

Defendant was present, sitting alone and eating. Defendant left and drove away in a gold Toyota 

Camry.

¶ 11 Another CPAT officer, Bobby Richardson of the Kendall County Sheriff’s Office, parked 

in the lot of a business behind the McDonald’s to surveille defendant. He saw a gold-colored car

drive behind his vehicle and onto Center Parkway, a north-south street that intersects Route 34 

west of Route 47. The gold car crossed Route 34 at the traffic signal and entered a residential 

neighborhood. Richardson did not attempt to follow, but instead drove to the Walgreens and 

parked in its lot. From there, he saw the gold car reappear and “approach the stoplight at Center 

Parkway and 34.” It turned onto Route 34, entered the Walgreens parking lot, and parked a few 

spots away from Richardson’s vehicle. At that distance, Richardson could see that defendant was 
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the car’s driver. Defendant remained in his car while Johnson approached and got into the front 

passenger seat. Richardson could not see what happened inside the car, but, after a few minutes, 

Johnson got out and returned to his vehicle. Defendant got out of his car and started walking 

towards the Walgreens, but turned around before he entered the store and walked over to Johnson’s 

vehicle and spoke to him briefly. Defendant then turned and walked into the Walgreens. Johnson 

drove away. 

¶ 12 Johnson testified that, on October 29, 2014, he spoke to defendant in person and arranged

to buy an ounce of cocaine from him. He and defendant made further arrangements by text 

message. Defendant called Johnson on October 30, 2014, to recommend the Route 34 McDonald’s 

as a meeting place. As Johnson was en route to the McDonald’s, defendant texted him to move 

the transaction to the Walgreens across Route 34 from the McDonald’s; Johnson texted the CPAT 

officers to alert them to the new location. (The CPAT officers saw his exchange of texts with 

defendant.) Johnson authenticated the audio recording of the transaction, identifying the voices 

heard during the transaction as his and defendant’s.

¶ 13 The State played the full audio recording, which lasts just over 24 minutes, for the court. 

At the start of the recording, Johnson introduced himself as “Emilio Williams” and consented to 

the recording. From then until approximately minute 19, the recording reproduces unidentifiable 

rustling noises and identifiable sounds such as a turn signal indicator and traffic noises.

¶ 14 At around minute 19, the recorded noises change; there is pinging consistent with an opendoor warning. Johnson speaks to defendant, complaining about the road construction. Johnson 

mentions that he has to hurry to return the car and says something of which only the word 

“thousand” is audible. He then says, “I might call you later for another one.” Defendant says 

“Yup,” and then something inaudible. Johnson further says, “I’ll probably come tomorrow for 
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that party. [Inaudible] you’re having a Halloween party.” Defendant responds, “Tomorrow’s 

Friday, no? Is Friday?” There is then some discussion; defendant’s side is largely inaudible. 

Johnson says he will call defendant, and pinging sounds are heard consistent with Johnson’s 

leaving defendant’s car and getting into his vehicle. At about 20:22, defendant’s voice says what 

sounds like, “It was what?” Johnson responds, “Thousand.” Defendant then says what sounds 

like “By the way, it was over an ounce, right?” The words “over an ounce,” although quiet, are 

plainly audible. Johnson says, “Yep,” and “Later.” Traffic noises then resume.

¶ 15 Johnson confirmed that, when he returned to his vehicle after the transaction, defendant 

approached the vehicle and briefly engaged Johnson in conversation. Johnson then left the area. 

¶ 16 The parties stipulated that the substance Johnson brought to the CPAT officers weighed 17 

grams and contained cocaine, and the State rested its case.

¶ 17 Defendant testified that he owned a company, GTZ Restoration Corp. He had known 

Johnson for 20 years. They met while playing pool, and Johnson had bought cars from defendant. 

Defendant often let Johnson pay for cars in installments. As of October 30, 2014, Johnson owed 

defendant money on a car. Johnson had been in prison, which had prevented him from making 

payments. When Johnson got out of prison, he made a few payments, and then, on October 30, 

2014, Johnson offered to pay off the remaining debt. The two agreed to meet at the Route 34 

McDonald’s. Defendant went there and bought some food, but Johnson called him and asked to 

meet at the Walgreens on the other side of Route 34, so defendant drove there. 

¶ 18 On cross-examination, defendant agreed that he had driven across Route 34 and into a 

residential area, rather than taking the direct route to the Walgreens. However, he denied that he 

was conducting countersurveillance; he said that he had avoided taking the left turn because road 

construction had made the traffic unusually bad. He accepted $1000 in cash from Johnson, but he 
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did not give Johnson anything, nor did he discuss giving Johnson anything. He recalled Johnson 

talking about “another one.” He thought that Johnson, who still owed him about $1160, was 

talking about making more payments, and that part of the conversation confused him. He had no 

contact with Johnson after the transaction. 

¶ 19 Defendant agreed that Johnson had visited him in person on October 29, 2014, to set up a 

meeting for the next day. Johnson sought him out in Earlville, where defendant then operated a 

restaurant. Defendant denied that Johnson had ever proposed to pay him $1000 for an ounce of 

cocaine. He explained that, three or four years earlier, Johnson had agreed to pay him $1500 over 

time for a Honda Accord that he had bought at an auction for $1300. He had also lent Johnson 

some gas money. However, he did not have a bill of sale for the Accord. He claimed that this was 

because of the high turnover of auction cars: “I used to buy those cars in auction and sometimes 

they don’t even change the name. As soon as you get it, you sell it.” He denied hearing Johnson 

say anything about an ounce. When defendant walked back to Johnson’s car, he asked what time 

Johnson would be around the next day—that is, what time he would go to a party. 

¶ 20 The court found defendant guilty. It did not comment on the evidence. 

¶ 21 B. Posttrial Proceedings

¶ 22 Defendant filed a timely “Motion for a New Trial” in which he asserted that the evidence 

was insufficient to support the conviction. The court denied this motion on March 10, 2017. It 

commented that the audio recording was “[t]he major piece of evidence for me,” that it had listened 

to it multiple times, and was persuaded of defendant’s guilt by “what was said by [defendant] and 

by the informant.” It sentenced defendant to 6 years’ imprisonment, the Class X minimum, and 

fined him $1000, using its discretion to reduce the standard fine. Vincent Solano, who was not 

defendant’s trial counsel, represented defendant at this hearing.
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¶ 23 On April 7, 2017, defendant, now represented by Richard R. Mottweiler, filed 

“Defendant’s Post-Trial Motion to Reconsider Sentence and for a New Trial Based upon Newly 

Discovered Evidence.” This motion suggested that the sentencing had been improper because 

Solano had failed to give the court defendant’s written statement in the nature of a statement in 

allocution and because Solano had failed to call defendant’s father. However, the primary claim 

in the motion (and the only one at issue on appeal) was that defendant had new evidence to suggest 

that the supposed sale was a frame-up by Johnson. Defendant had learned that, on November 13, 

2014, Johnson, acting as an informant, had approached Omar Dieppa to purchase drugs. After 

Dieppa accepted money from Johnson, CPAT officers arrested him. Dieppa told his lawyers that 

Johnson had contacted him to offer to pay a preexisting debt. Although counsel for Dieppa 

discussed this potential defense at the preliminary hearing, Dieppa ultimately entered a guilty plea. 

Defendant contended that this similar incident cast doubt on Johnson’s reliability as an informant 

and requested that the court reopen discovery and hold an evidentiary hearing on Johnson’s history 

as an informant.

¶ 24 Defendant filed his “First Amended Motion to Reconsider Sentence and for a New Trial 

Based upon Newly Discovered Evidence” on July 26, 2017. In this, he added the claim that he 

had needed a Spanish language interpreter during his trial but that counsel had failed to arrange 

for one. Further, he added a request for the court to reconsider the sentence.

¶ 25 The court held an evidentiary hearing on the motion. Mottweiler explained Dieppa had 

been his client and that defendant learned of Dieppa’s experience when he contacted Mottweiler 

for representation. Mottweiler told the court that, considering defendant’s and Dieppa’s 

experiences together, the evidence suggested that Johnson had inflated the number of arrests 

produced by his cooperation with CPAT by framing his creditors. According to Mottweiler’s 
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theory, Johnson told CPAT officers that his creditors were willing to sell drugs, but only to him, 

not to undercover officers. This allowed Johnson to set up defendant and Dieppa for arrest by 

luring them to rendezvous with offers of repayment while persuading CPAT that drug transactions 

had occurred by supplying the drugs himself. Mottweiler told the court that he had spoken to as 

many defendants as he could find who were arrested based on alleged transactions with Johnson. 

Only defendant and Dieppa fit the pattern of a defendant claiming that Johnson owed them money.

¶ 26 The State argued that the evidence of Dieppa’s experience was of a character that

defendant, had he been diligent, could have discovered it before his trial. The State pointed out 

that, on September 11, 2015, defendant’s trial counsel received a list of all the cases in which 

Johnson was going to be a witness for the State. Those cases included the one against Dieppa and 

four others, including the one against defendant. Mottweiler responded that, as a practical matter, 

it was difficult for a defense attorney to track down all the cases related to a single informant to 

look for similarities.

¶ 27 Dieppa testified at the hearing. He stated that he was in prison after having agreed to plead 

guilty to the delivery of a controlled substance. He had previously been in prison for five years, 

and shortly after his release, Johnson called him to suggest that they should meet so that Johnson 

could repay some of a $1800 debt. Dieppa agreed to meet with him at a Game Stop. Johnson 

arrived at the Game Stop’s parking lot in a small sedan. Dieppa walked up to the driver’s window 

and accepted $1400 in cash from Johnson but did not transfer anything to Johnson. As Dieppa

walked away, Johnson mumbled something; Dieppa agreed that it might have been something 

about another transaction. Dieppa left with the money, and CPAT officers arrested him shortly 

after that.
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¶ 28 The State introduced the audio recording of the transaction between Johnson and Dieppa. 

In that recording, Johnson and Dieppa confirm to one another that something is “fourteen.” 

Johnson states that he is in a hurry; because he has “the neighbor’s car.” Dieppa asks when 

Johnson “wants to do this again.” Johnson says, “Tomorrow.” Johnson says that he will call 

“tomorrow” at “about five o’clock,” but that he “might need two of them.” They each say, “Later.” 

Approximately 10 seconds later, Johnson says, “Yes, Omar sold me one ounce of cocaine.” 

¶ 29 On January 5, 2018, the court entered a written order denying defendant’s motion. It 

concluded that, “based on the totality of the evidence against the Defendant,” the new evidence 

was “not of such a conclusive character that it [would] probably change the result on retrial, nor 

does it warrant closer scrutiny to determine the guilt or innocence of the Defendant.” The court 

also found that defendant spoke English well enough that an interpreter was unnecessary. 

Defendant filed his notice of appeal on February 2, 2018. 

¶ 30 II. ANALYSIS

¶ 31 On appeal, defendant contends that the evidence was insufficient to support his conviction 

and that the court abused its discretion when it denied his motion for a new trial. The State argues 

that we should reject both claims on their merits.

¶ 32 A. The Sufficiency of the Evidence 

¶ 33 Defendant contends that the evidence was insufficient to sustain his conviction because 

the State lacked any physical evidence that he was the source of the cocaine and because the 

State’s case was too dependent on the testimony of Johnson, an inherently unreliable witness.

¶ 34 We review the sufficiency of the evidence under the standard of Jackson v. Virginia, 443 

U.S. 307, 319 (1979), as adopted by People v. Collins, 106 Ill. 2d 237, 261 (1985): when a 

reviewing court decides a challenge to the sufficiency of the evidence, “ ‘the relevant question is 
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whether, after viewing the evidence in the light most favorable to the prosecution, any rational 

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” 

(Emphasis in original.) Collins, 106 Ill. 2d at 261 (quoting Jackson, 443 U.S. at 319). “[W]here 

the finding of guilt depends on eyewitness testimony, a reviewing court must decide whether, in 

light of the record, a fact finder could reasonably accept the testimony as true beyond a reasonable 

doubt,” but, “[i]n conducting this inquiry, the reviewing court must not retry the defendant.” 

People v. Cunningham, 212 Ill. 2d 274, 279 (2004). “Testimony may be found insufficient under 

the Jackson standard, but only where the record evidence compels the conclusion that no 

reasonable person could accept it beyond a reasonable doubt.” Cunningham, 212 Ill. 2d at 280. 

Although we must accord great deference to the fact finder’s decision to accept testimony and 

must view the evidence in the light most favorable to the prosecution, the fact finder’s decision is 

not conclusive. Cunningham, 212 Ill. 2d at 280.

¶ 35 Defendant asks that we apply a nondeferential standard when we consider the audio 

recordings of the transactions with Johnson. Our supreme court’s decision in People v. 

Radojcic, 2013 IL 114197, provides some support for that suggestion. The Radojcic court 

noted that, because a trial court is in a superior position to determine the weight of the evidence 

and the relative credibility of the witnesses, a reviewing court must defer to such 

determinations. However, it held that a reviewing court and a trial court are equally positioned 

as to a decision based only on transcripts, so that deference to the trial court is inappropriate 

in such cases. Radojcic, 2013 IL 114197, ¶ 34. In People v. Shaw, 2015 IL App (1st) 123157, 

¶ 29, a First District panel interpreted Radojcic to mean that deference is not owed to the trial 

court’s evaluation of any evidence that “is not live testimony.” In Shaw, the evidence in 

question was surveillance footage. Shaw, 2015 IL App (1st) 123157, ¶ 29.
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¶ 36 The Shaw court might have overstated the appropriateness of non-deference. Here, for 

instance, the court had the advantage of familiarity with the voices of both defendant and 

Johnson. However, we need not fully resolve the issue here, as the use of nondeferential 

consideration does not result in a favorable outcome for defendant.

¶ 37 We conclude that the evidence here was sufficient. Reviewing the audio recording as 

defendant asks us to, without deference to the trial court, we conclude that the recording 

strongly supports defendant’s guilt. As we noted, we think that the court had an advantage in 

reviewing the recording in that it was familiar with both defendant’s and Johnson’s voices. 

But Johnson briefly introduces himself at the start of the recording, and, in defendant’s longer 

responses, his manner of speaking is easily recognizable; as was discussed posttrial, defendant 

spoke English as a second language, and that is evident in the recording. Johnson dominates 

the initial conversation between himself and defendant, so that portion of the exchange 

provides little evidence of what defendant made of Johnson’s veiled suggestions of future drug 

transactions. However, after the brief pause, we hear defendant’s voice return and ask a 

question about “it” being “over an ounce.” That exchange is inconsistent with defendant’s 

testimony that he gave nothing to Johnson and strongly supports the State’s contention that 

defendant was at the transaction to deliver an ounce of cocaine. 

¶ 38 Moreover, the recording is consistent with the testimony of both Johnson and 

Richardson, both of whom described defendant walking away from the transaction, but then 

returning and speaking briefly with Johnson. Further, CPAT officers searched Johnson and 

his vehicle before and after the transaction. And the entire surreptitious form of the transaction 

was more consistent with a drug deal than the legitimate repayment of a debt. We thus reject 
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defendant’s contention that the State’s evidence did not provide substantial corroboration of 

Johnson’s testimony. We therefore conclude that, viewing the evidence in the light most 

favorable to the prosecution, the trial court could have rationally found defendant’s delivery of the 

cocaine beyond a reasonable doubt. 

¶ 39 B. The Court’s Denial of the Motion for a 

New Trial Based on New Evidence.

¶ 40 Defendant asserts that the court abused its discretion when it denied his motion for a new 

trial. He contends that Dieppa’s testimony suggested a pattern of misconduct by Johnson sufficient

that it would probably change the result on retrial. The State responds that defendant’s new 

evidence did not meet any of the criteria necessary for it to justify a new trial. The State does not 

raise any procedural objections to defendant’s motion. 

¶ 41 For a defendant to be entitled to a new trial based on newly discovered evidence, he or she 

must show that the evidence (1) is of such conclusive character that it would probably change the 

result on retrial; (2) is material and not merely cumulative, and (3) was discovered after trial and 

was of a character that it could not have been discovered before trial by the exercise of due 

diligence. People v. Smith, 177 Ill. 2d 53, 82 (1997). We will reverse the denial of a motion for a 

new trial based on newly discovered evidence only if the trial court has abused its discretion. 

Smith, 177 Ill. 2d at 82.

¶ 42 We hold that the trial court did not abuse its discretion when it found that defendant’s new 

evidence was “not of such a conclusive character that it [would] probably change the result on 

retrial.” Dieppa’s testimony and the associated evidence were not particularly favorable to 

defendant. A person arrested on evidence like that used to arrest both Dieppa and defendant has a 

limited number of remotely plausible defenses, one of which is the one used by both Dieppa and 

defendant: that they took the money for a preexisting debt. Dieppa ultimately decided that defense 
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was insufficiently plausible and entered a plea of guilty. The audio recording of the transaction 

shows why he likely made that choice. Dieppa’s question to Johnson about when he wanted to 

“do this again,” and Dieppa’s failure to ask Johnson about what he meant by possibly wanting 

“two of them,” were not consistent with a person accepting a payment on a debt. Moreover, the 

evidence in the case against defendant was strong. We thus affirm the court’s denial of defendant’s 

motion for a new trial based on new evidence.

¶ 43 Furthermore, we agree with the State’s contention that the court could have denied the 

motion on the basis that Dieppa’s experience with Johnson was evidence of a character that it 

could have been discovered before trial by the exercise of due diligence. As the State pointed out, 

defendant received discovery documents that revealed the four other defendants—including 

Dieppa—in whose prosecutions Johnson was cooperating. Had trial counsel exercised due 

diligence in developing a defense based on the theory that Johnson had deceived CPAT by himself 

supplying the cocaine that he supposedly received from defendant, counsel could have interviewed 

the other implicated defendants to determine whether Johnson had a practice of using deceptive 

tactics.

¶ 44 III. CONCLUSION

¶ 45 For the reasons stated, we affirm defendant’s conviction. 

¶ 46 Affirmed.